Wednesday, August 06, 2014

In the past, I have, for several reasons, argued against the notion of "states'
rights" and the related idea of the separate states as being "laboratories of democracy". In the first of the two links, I pretty much
summed up what I think the rights of the states (which can only derive from
individual rights) consist of:

The only valid application of the notion of states' rights is to
permit states to handle relatively unimportant matters as they see fit. This
allows, for example, a thinly-populated state like Nebraska to have a unicameral
legislature, or a state originally settled by the French, like Louisiana,
to base its legal system on Napoleonic Code
rather than English Common Law. In neither case are individual rights being
violated.

That said, the existence of separate state governments has historically had the
undeniable side-benefit of sometimes causing our country to be
less-than-uniformly tyrannical, as when the "free states" existed during the
time of slavery (which our Constitution permitted until it was corrected by
amendment). At least there was somewhere to run, within the United States, back
then.

That said, this accidental protection from mistaken and wrong
federal law is quickly eroding, as an interesting article in
The Atlantic makes clear. Here's an example, of how the feds ramrod
economy-strangling environmental regulations down the throats of states that
don't want them:

Money isn't the only lever the feds use to increase their
influence over state governments. Formally, the federal government can't
require states to implement federal regulations. But environmental
regulations show how easy it is to get around that constraint. The Clean Air
Act allows the states to issue federal permits--but only under
federally approved state implementation plans, or SIPs. Those plans must meet a
dizzying number of conditions; otherwise, the EPA trumps with a federal
implementation plan, or FIP.

When EPA comes in with its FIP, it
often comes to "crucify" local industries, as former EPA Regional
Administrator Al Armendariz boasted at a closed-door meeting early in the Obama
administration. The crucifixion takes the form of costly added requirements and
endless delays. The federal government basically says to uncooperative states,
"Implement our regulations for us, or we'll do it ourselves, and
your constituents will be sorry." Predictably, constituents pressure
state officials to protect them from the dire prospect of EPA implementing its
own regulations, as we saw when Texas at first resisted implementing
EPA's new greenhouse gas regulations.

The article includes a brief historical survey of the legislative and
legal history behind this trend and concludes with this warning:

The mounting federal takeover of the states started slowly during
the New Deal and has intensified substantially, especially in recent years.
That inexorable trend is leading to unsustainable levels of government spending
and a regulatory regime that grows more intrusive and oppressive by the day.
One solution is paramount: Strengthen the vital but oft-neglected separation of
federal and state governments.

I agree with the prognosis, but not the diagnosis or the proposed cure. The
problem isn't that the states are less sovereign than they ought to be, but
that individuals are having their rights violated rather than protected by
improper government. Simply making the individual states more idependent will
not really solve this more fundmental problem. Fifty tyrannies that plunder
their citizens and order them around is no more desirable than one. Merely fighting fighting for greater state-level independence distracts from the real fight for freedom, which entails all levels of government protecting individual rights, rather than violating them.